CASE OF FESHCHENKO v. UKRAINE (European Court of Human Rights) Application no. 75394/13

The present case concerns allegations under Article 2 of the Convention that the investigation into the disappearance of the applicant’s daughter was ineffective.


FIFTH SECTION
CASE OF FESHCHENKO v. UKRAINE
(Application no. 75394/13)
JUDGMENT
STRASBOURG
14 October 2021

This judgment is final but it may be subject to editorial revision.

In the case of Feshchenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Lətif Hüseynov, President,
Lado Chanturia,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 75394/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Mykola Mykolayovych Feshchenko (“the applicant”), on 19 November 2013;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 23 September 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The present case concerns allegations under Article 2 of the Convention that the investigation into the disappearance of the applicant’s daughter was ineffective.

THE FACTS

2. The applicant was born in 1963 and lives in Kyiv. The applicant, who had been granted legal aid, was represented by Mr M. O. Tarakhkalo, a lawyer practising in Kyiv.

3. The Government were represented by their Agent, Mr I. Lishchyna.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. In April 2010 the applicant’s daughter, D., who was nineteen years old at the time, left home and disappeared. All the family savings disappeared at the same time.

6. On 24 April 2010 the applicant reported to the police that his daughter had disappeared.

7. The police interviewed D.’s friends, including her former boyfriend S., who stated that he had met D. on 22 April 2010 and that D. had told him that she had money with her and asked him to go away with her. S. had declined the proposal and had not seen D. since then.

8. On 29 April 2010 the police opened an operative search case file dedicated to the search for D.

9. On 30 April 2010 the Kyiv Desnyanskyy District Police Department (“the District Police Department”) refused to institute criminal proceedings in connection with the applicant’s complaint for lack of constituent elements of a crime. The police stated that D. had not been found in the database of unidentified patients and unidentified dead bodies; enquiries revealed that D. was prone to alcohol abuse, had ties with suspicious individuals, had been having quarrels with her relatives and that she had previously left home but later returned.

10. On an unspecified date the applicant received a letter from D. The envelope was postmarked Odessa. On 20 May 2010 the police went to the city of Odessa where they found D.’s cell phone and her handbag. Those items were with a local merchant who claimed that he had found them in a street in Odessa.

11. On 17 May 2011 the Kyiv City Prosecutor’s Office informed the applicant that the decision of 30 April 2010 had been quashed as unfounded.

12. On 8 June 2011 the District Police Department instituted criminal proceedings in connection with D.’s disappearance on suspicion of false imprisonment and kidnapping.

13. On 5 August 2011 the applicant wrote to the Minister of the Interior. He indicated that he believed that D. might have been kidnapped and possibly killed by S., her former boyfriend, to appropriate the money taken from the applicant’s home. The applicant further stated that following D.’s disappearance, S.’s lifestyle had changed dramatically: S. had built a house for himself and another for his family and he had acquired two cars. The applicant asked therefore that the criminal proceedings be reclassified from kidnapping to murder.

14. On 6 September 2011 the Ministry of Internal Affairs informed the applicant that it had given instructions as regards the further investigation of the case. The Ministry stated that a disciplinary inquiry had been initiated to punish those who had failed to ensure appropriate investigation of the case.

15. On 25 January 2012 the applicant wrote to the head of the Kyiv police, arguing that the police had failed to pursue the leads related to S., even though he was the last person to have seen D. In particular, they had failed to search his residence and obtain records from his five telephones which, the applicant believed, might contain information about D.’s whereabouts.

16. On 24 February 2012 the Ministry of Internal Affairs informed the applicant that, having reviewed the case, they found that the investigation had been insufficient and directed the Kyiv police to discipline the officers at fault.

17. On 6, 16 and 21 November 2012, 26 July 2013, 11 April 2016 and 28 August 2018 the prosecutors at various levels informed the applicant, in response to his complaints, that the investigation of the case had been inadequate, that the police had failed to take appropriate steps to establish D.’s whereabouts and that disciplinary proceedings had been instituted against the police officers in charge of the case. Instructions had been given as regards further measures to be taken.

18. In October 2020 the applicant requested access to the criminal case file. His attempts to meet with the investigator, however, were unsuccessful.

19. On 16 November 2020 the local department of Kyiv City Prosecutor’s Office informed the applicant that they had examined the case file and established that the investigation had been inadequate and that instructions had been given as regards the further measures to be taken.

RELEVANT LEGAL FRAMEWORK

20. The relevant provisions of the domestic law can be found in Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008) and Nagorskiy v. Ukraine ((dec.), no. 37794/14, § 38, 12 January 2016).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

21. The applicant complained, referring to Articles 2, 6 and 13 of the Convention, that the investigation into the disappearance of his daughter had been ineffective.

22. The Court considers that this complaint is to be examined under Article 2 of the Convention (for a similar approach, see Girard v. France, no. 22590/04, § 49, 30 June 2011 and Yuriy Slyusar v. Ukraine, no. 39797/05, § 63, 17 January 2013) which, in so far as relevant, reads as follows:

“Everyone’s right to life shall be protected by law …”.

A. Admissibility

23. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

24. The applicant contended that the authorities failed to carry out effective search measures and investigate the disappearance of his daughter. The full-scale investigation was initiated belatedly and it did not focus sufficiently on the possible murder of his daughter.

25. The Government submitted that the national authorities had taken all necessary steps in order to collect evidence and establish the circumstances of the disappearance of the applicant’s daughter.

26. The Court reiterates that the duty of the State to take appropriate steps to safeguard the lives of those within its jurisdiction also extends, in appropriate circumstances, to a positive obligation to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual, or from self-harm (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998‑VIII, p. 3159, § 115). Such a positive obligation will arise where it has been established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116, and Mastromatteo v. Italy [GC], no. 37703/97, § 68, ECHR 2002‑VIII). This positive obligation also applied in cases concerning disappearances in suspicious circumstances (see Girard v. France, no. 22590/04, § 66, 30 June 2011, with further references).

27. Moreover, a procedural obligation to carry out an effective official investigation may arise under Article 2 in cases where a person has disappeared in circumstances where his or her life could be considered to be in danger (see Girard, cited above, § 67, with further references). This procedural obligation applies regardless of whether the body has been discovered (see in that regard Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 145, ECHR 2009). The minimum standards of effectiveness include the requirements that an investigation is thorough, independent, impartial and subject to public scrutiny, and that competent authorities act with exemplary diligence and promptness (see, among many other authorities, Aleksandr Nikonenko v. Ukraine, no. 54755/08, § 44, 14 November 2013).

28. The present case concerns the disappearance of the applicant’s daughter in April 2010 when she was nineteen years old. Since that time, the fate of the applicant’s daughter is unknown. In terms of positive and procedural obligations under Article 2 of the Convention, the question arises whether the disappearance of the applicant’s child was suspicious and whether it provided arguable grounds for the authorities to believe that the life of the applicant’s daughter was in danger.

29. Following the applicant’s complaint of 24 April 2010, the police carried out preliminary enquiries in order to establish the circumstances of D.’s disappearance. In this regard it is relevant to note that, at the same time as D. left home, the applicant’s family savings had also disappeared (see paragraph 5 above). The police then established that D. had been prone to alcohol abuse and that she had ties with suspicious individuals (see paragraph 9 above). At that time, D.’s boyfriend had admitted to the police that during their last meeting D. had had money with her and that she had suggested that they go away together (see paragraph 7 above). One month after this interview, the police had discovered D.’s cell phone and handbag, which had been lost in a different city (see paragraph 10 above). In the Court’s opinion, all these circumstances suggest that the authorities had had sufficient information as early as May 2010 to suspect that D.’s life was in danger.

30. Accordingly, having regard to the principles developed in the context of the “positive obligation to take operational measures” and the “procedural obligation” under Article 2 (see paragraphs 26 and 27 above), the Court must determine in the present case whether the authorities took all the necessary measures to establish D.’s whereabouts and whether they carried out an effective investigation into her suspicious disappearance.

31. In this regard it remains unclear why the full-scale investigation was initiated so belatedly, in June 2011 (see paragraph 12 above), more than a year after the disappearance. This considerable and unjustified delay was not compensated by any comprehensive investigative arrangements in the subsequent period. The applicant insisted on the hypothesis of murder and pointed to the necessity of examining specific facts concerning S., who turned to be the last person to have seen D. (see paragraphs 13 and 15 above). In response, the applicant only received acknowledgments that the investigation had been inadequate and general assurances that further effective measures would be taken (see paragraphs 14 and 16 above).

32. Nevertheless, over the subsequent years the investigation remained ineffective and this was repeatedly admitted by the authorities (see paragraph 17 above). The Court, having examined the materials available, finds that the domestic authorities failed in their obligations to carry out a comprehensive and timely search and investigative measures in respect of the suspicious disappearance of the applicant’s daughter.

33. In view of the above, the Court holds that there has been a violation of Article 2 of the Convention on that account.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

35. The applicant claimed 60,000 euros (EUR) in respect of non‑pecuniary damage.

36. The Government maintained that the applicant’s claims were unfounded.

37. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, as required by Article 41 of the Convention the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage.

38. The applicant further claimed EUR 2,553.60 in respect of costs and expenses.

39. The Government contended that the claim was unsubstantiated.

40. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award, in addition to the legal aid received, the sum of EUR 800 for costs and expenses, plus any tax that may be chargeable to the applicant. At the request of the applicant, the amount awarded under this head should be paid directly into the bank account of Mr M. Tarakhkalo (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of Mr M. Tarakhkalo;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                            Lətif Hüseynov
Deputy Registrar                           President

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